In State v. Mecham, the WA Supreme Court decided that Prosecutors in DUI trials may admit evidence that a defendant is declining field sobriety tests as evidence of consciousness of guilt.

FACTS

In 2011, Officer Campbell made a traffic stop of defendant Mark Tracy Mecham. Although Mecham’s driving showed no signs of intoxication, Mecham smelled of intoxicants and had slurred speech. The officer asked Mecham to perform voluntary field sobriety tests (FSTs), which would have involved Officer Campbell’s observing Mecham’s eye movements and ability to walk a straight line and stand on one leg. Mecham refused.

At trial, Mecham moved to suppress his refusal to perform the FSTs. Typically, trial courts grant this defense motion. In Mecham’s case, however, the trial court denied his motion and ruled that even if FSTs were a search, probable cause supported the search. Mecham’s refusal was admitted to the jury as evidence to support the Prosecutor’s theory that Mecham exhibited “Consciousness of Guilt.” The jury found Mecham guilty of DUI.

Eventually, Mecham’s case was appealed to the WA Supreme Court. He argued that his right to be free from unreasonable searches was violated when the trial court admitted evidence of his refusal to undergo FSTs.

THE DECISION

Unfortunately for Mecham, the WA Supreme Court disagreed and upheld his DUI conviction. In a deeply divided decision, the Court held that while a FST is a seizure, it is not a search either under article I, section 7 of the Washington Constitution or under the Fourth Amendment to the United States Constitution. The State may, therefore, offer evidence of a defendant’s refusal to perform FSTs. Field sobriety tests may only be administered when the initial traffic stop was supported by reasonable suspicion and the officer has reasonable suspicion that the defendant was driving under the influence.

The lead majority opinion was authored by Justice Wiggins. Justice Fairhurst concurred in part and dissented in part. Justice Fairhurst would prohibit the administration of FSTs once the defendant is already under formal arrest for an offense other then DUI. Justice Johnson dissented on the grounds that the defendant had been told by the officer who administered the FSTs that they were voluntary. Finally, Justice Gordon McCloud dissented on the grounds that FSTs are searches.

My opinion?

I agree with Justice McCloud’s dissent. Here’s a portion:

“An FST can reveal information about a person’s body and medical history that are unquestionably private in nature. According to the National Highway Traffic Safety Administration (NHTSA), in addition to possible inebriation, FSTs can reveal a head injury, neurological disorder, brain tumors or damage, and some inner ear diseases. These conditions are not necessarily observable in the subject’s normal public behavior; they may well be revealed only by the special maneuvers the subject is directed to perform during the FST. Indeed, if an FST did not reveal information beyond what is readily observable by the general public, there would be no need to administer it in the first place. I therefore conclude that FSTs are searches under article I, section 7 of our state constitution.”

FSTs are a search. Period. Clearly, Officers who ask citizens to performs FSTs are seeking evidence of DUI. Because FSTs are a search, Mecham had a constitutional right to refuse to perform them unless (1) the officers had a warrant, or (2) an exception to the warrant requirement applied. Here, the Officer neither possessed or obtained a warrant for a blood test. Nor did the Officer even attempt to get a warrant.

Even more concerning, Prosecutors now have free reign to spin a citizen’s refusal of FSTs as “consciousness of guilt.” That’s unfair. Indeed, there’s a lot of debate in criminal law on whether FSTs accurately and/or scientifically indicate whether someone is DUI. These tests are, quite simply, balancing and memory tests administered under extremely uncomfortable and stressful conditions. These tests – which more of less reflect bad balance, lack of memory and preexisting health issues – simply do not accurately depict intoxication.

The Defendant Ms. Sleater had prior convictions for various drug offenses. As of April 2014, she was making a combined monthly payment of$75 toward three cases. She was also entered into Benton County’s “pay or appear” program. It required her to make her legal financial obligation (LFO) payments every month or appear to schedule a hearing to explain why she could not make the payments. The program agreement also stated that if the defendant did not make a payment and failed to schedule a hearing, “a warrant will be issued for the Defendant’s arrest.”

For months, Ms. Sleater’s mother paid the monthly fines. Her mother made a $150 on-line payment on April 17, 2014. Unfortunately, the computer did not apportion the sum among the three accounts, but applied all of the money to only one case number identified with the payment. AS a result, The other two counts were four and seven months behind.

On April 22, 2014 the clerk’s office obtained arrest warrants for Ms. Sleater since she had not made payments on those two cases and had not scheduled a hearing to explain the lack of payments.

On May 16, 2014 officers arrested Ms. Sleater on the two warrants. She possessed methamphetamine at the time of her arrest. Consequently, the prosecutor filed one count of possession of a controlled substance. Her attorney moved to suppress the evidence under CrR 3.6 on the claim that the warrants were wrongly issued. However, the trial court denied the motion and found Ms. Sleater guilty at trial. She appealed.

The Court reasoned that the Fourth Amendment protects against unreasonable seizures, and that seizure is reasonable if it serves a governmental interest which is adequate to justify imposing on the liberty of the individual.” However, it violates due process to punish defendants for failing to pay fines if the defendant cannot pay simply because they are impoverished.

“Nor can a state impose a fine and convert it to jail time solely because a defendant has no ability to pay the fine. The State must afford the defendant a hearing before jailing him for failing to pay his obligations. While the court can put the burden to prove inability to pay on the defendant, it still has a duty to inquire into a defendant’s ability to pay fines prior to jailing him.”

Here, the Court reasoned that the effect of the arrest warrants was to require Ms. Sleater to go to jail for failing to pay her LFOs without first conducting an inquiry into her ability to pay them:

“The facts of this case demonstrate the need for such an inquiry. Ms. Sleater’s mother did make a payment toward her daughter’s LFOs, but through some type of error the payment was not reflected in all three files. A hearing before the warrants issued would have allowed the court to resolve the problem without the necessity of an arrest.”

Here, reasoned the Court, a warrant should not have issued for defendant’s failure to pay without first determining the willfulness of that violation. Accordingly, the Court of Appeals reversed Ms Sleater’s conviction for possessing methamphetamine.

Defendant E.G. was 17-year-old juvenile with Asperger syndrome. He began sending harassing phone calls to T.R., a former employee of E.G.’s mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found T.R.’s telephone number by checking his mother’s business records. Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with explicit language.

Unfortunately, E.G. had prior criminal behavior of a similar nature. At the time of his arrest, E.G. was currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier juvenile adjudication for communicating with a minor for immoral purposes.

The defense moved to dismiss the charges under the argument that the statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied the motion, concluded E.G. had committed the offense and required E.G. to register as a sex offender.

Ultimately, the Court of Appeals upheld the juvenile court’s findings of guilt.

First, the Court of Appeals reasoned that E.G.’s conduct was not protected by the First Amendment because minors have no superior right to distribute sexually explicit materials involving minors than adults do.

Second, the Court rejected arguments that the criminal statute was vague because it does not provide notice that sending self-produced images of one’s own genitalia to others is included within the scope of the statute. The Court reasoned that while the statute’s reach may be broad, it is not vague.

Third, the Court rejected arguments that it was absurd for E.G. to be both victim and perpetrator. The Court’s response was perfunctory and direct:

“We disagree. First, nothing in the statute requires proof of any specific “victim” status as an element of the offense. Rather, child pornography per se victimizes children, which is the reason the legislature is seeking to eradicate it, whether or not the child willingly takes part. The legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons.”

Finally, the Court of Appeals rejected arguments that E.G.’s actions were an innocent sharing of sexual images between teenagers: “It appears, instead, to be the latest step in a campaign of anonymous harassment of T.R. for reasons best known to E.G., but even if it was an effort to entice or impress her, this was not an innocent activity.” With that, the Court of Appeals affirm the juvenile court’s adjudication and disposition of this case.

My opinion?

I understand it was a terrifying experience for the victim to undergo this terrible experience. Nevertheless, its difficult to justify where, under these facts, a 17-year-old juvenile with Asperger syndrome should be found guilty of a heinous Class A sex offense felony and register as a sex offender for a number of years.

Although there are many possible symptoms of Asperger’s syndrome, the main symptom is significant trouble with social situations. Other symptoms include the following:

Inability to pick up on social cues;

Lack of inborn social skills, such as being able to read others’ body language, start or maintain a conversation, and take turns talking;

Lack of empathy;

Inability to recognize subtle differences in speech tone, pitch, and accent that alter the meaning of others’ speech;

. . . and the list goes on.

Again, my condolences to the victim. Still, when Asperger’s syndrome is coupled with adolescence and immaturity, it’s difficult to imagine a juvenile defendant truly understanding the repercussions of his actions under these facts.

The organization is a voluntary professional association of lawyers who live and practice in Skagit County, Washington. Among other things, the organization gives pro bono legal help to low-income residents in need of legal services via their Volunteer Lawyer Program. Members also enjoy access to networking opportunities and a profile in the Association’s online directory. Finally, young lawyers benefit from lower-cost membership and fun social events that are both educational and great networking opportunities.

Skagit Countyis a county in Washington with a population of 116,901 as of 2010. Its largest city is Mount Vernon.The county was formed in 1883 from Whatcom County and is named for the SkagitIndian tribe, which has been indigenous to the area prior to European-American settlement.

Being directly south of Whatcom County, I routinely assisted clients who reside in Skagit County and its various municipalities. I’m very pleased to finally and officially joining the Skagit County Bar Association, network with other attorneys and participate in the organization’s community service activities.

Three research studies released this month further confirm the ineffective, discriminatory, and unsafe influence of money bail in U.S. criminal justice systems.

In The Heavy Costs of High Bail: Evidence from Judge Randomization, a Columbia Law and Economics Working Paper by Arpit Gupta, Christopher Hansman, and Ethan Frenchman, describes how assigning money bail to people accused of crime in Philadelphia and Pittsburgh increases the likelihood of conviction by 12% and increases recidivism by 4%. Ultimately, the authors found that the use of money bail is not effective – it “does not seem to increase the probability that a defendant appears at trial,” and actually makes us all less safe.

In her University of Pennsylvania Law School Working Paper, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, Megan Stevenson reports that people arrested for crimes in Philadelphia and detained due to their inability to pay money bail face up to a 30% increase in convictions—driven by increased guilty pleas—and an additional 18 months of incarceration compared to those who are able to afford bail.

Finally, the Prison Policy Initiative (PPI) released an analysis of national data that gives context to the Columbia and University of Pennsylvania papers. In Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time, PPI found that “most of the people who are unable to meet bail fall into the poorest third of society.” Their median income – only $15,109 prior to incarceration – was less than half of the income of non-incarcerated people, and yet the median bail amount nationally is almost a full year’s income for the typical person unable to post a bail bond. Money bail, PPI concludes, results in the unnecessary and excessive detention of poor people, essentially jailing people for their poverty.

This research highlights what legislators, practitioners, and taxpayers are increasingly recognizing: money bail doesn’t work, is discriminatory, and makes communities less safe.

“With these recent research findings, there should no longer be any doubt, anywhere, that money bail unfairly punishes the poor while also making everyone less safe. Our 3DaysCount campaign calls for replacing the broken money bail system with commonsense and proven solutions to support people being successful on pretrial release.”

“Our nation must stop criminalizing poverty, and these new studies provide crucial data proving that being poor increases your chance of jail time and conviction. This kind of research is crucial to supporting the No Money Bail Act of 2016, which would eliminate the use of money bail at the federal level and incentivize states to end the use of bail through the withholding of federal grants. We can no longer stand by in good conscience while Americans, presumed innocent, are deprived of their liberty because they can’t afford bail. Justice in America should not be bought and paid for.”

“People should not be held in jail pending the disposition of charges merely because they are poor and cannot afford bail. Recent research suggests that we can identify better ways to make release decisions that will treat people fairly, protect the public, and ensure court appearances.”

My opinion? This national effort is gratifying. Few people understand how incarceration negatively affects job opportunities, families and ability mental/emotional wellness. In my Legal Guide titled, “Making Bail,” I discuss how one of the greatest services a competent defense attorney can do for their clients is assist in getting them released from jail as soon as possible on either a reduced bail amount which is lower than the Prosecutor’s recommendations or that the defendant be released without bail altogether.

One opportunity to lower/rescind bail is at the defendant’s first appearance or arraignment. Another opportunity exists through a Bail Review Hearing.

Under CrR 3.2, judges must review the nature of the pending criminal charges, a defendant’s prior criminal history, their history of failing to appear at past court hearings, and their ties to the community (property ownership, employment, family, school, etc). Factoring all of this, the judge decides whether to lower bail or release the defendant altogether.

Also, CrR 3.2 allows release of defendants to the care of willing and responsible members of the community, including family members. Also, judges may be persuaded to impose other pretrial release conditions such as mandatory curfews, staying away from businesses serving alcohol. Almost everything is negotiable.

My opinion? Hire a competent defense attorney to assist this endeavor. Getting out of jail as soon as possible saves people’s careers, maintains stability in the family and allows your defense attorney more time to either resolve the case or prepare for trial. Good luck!